Prohibition of selling fruit before it ripens
QUESTION:-
Nowadays, people sell fruit before it ripens, whereas this type of transaction is prohibited in the Hadith. Will this Urf be considered or not?
ANSWER:-
It is recorded in Sharhul Majallah that, if the practice of selling fruit before ripening, with the condition that it should be left on the tree until ripening, becomes the norm in society, then such a transaction will be permissible according to Imaam Muhammad Rahimahullah. [Re:- Sharhul Majallah Ataasi Pg.95/96 Vol.2]
It is mentioned in the Takmilah of Fathul Mulhim that, it is apparent from the words of Ibn Humaam in Fathul Qadeer that when it becomes the norm to sell fruit after ripening, with the condition of leaving it on the tree as there is a need for it, then the analogy of Imaam Muhammad Rahimahullah is that it is permissible, even though the fruit didn’t reach maximum size; as he permitted leaving the fruit after it reached maximum size due to the norm of society and necessity. Similarly, he has permitted the sale of fruit when some of it has become apparent and some hasn’t yet become apparent, due to necessity and URF. In conclusion, the analogy of Imaam Muhammad Rahimahullah is that it is permissible (to sell the fruit and leave it on the tree) at the time of necessity, even though the fruit has not reached maximum size. [Re:- Takmilah Fathul Mulhim Pg.395 Vol.1]
It is recorded in Ahsanul Fataawa on page 486 Vol.6 that, after concluding the transaction correctly, if the purchaser was clearly permitted to leave the fruit on the tree, or he was permitted to do so through indication, then the fruit will be Halaal.
A doubt can be created here that, nowadays it has become the norm to leave the fruit on the trees until it ripens, hence, the transaction should be considered as a corrupt transaction, as “that which is the norm is like that which has been made a condition.” The answer to the objection is, if one attaches the condition of keeping the fruit on the tree, then the transaction will become corrupt as this will lead to a dispute, but when the practice of leaving the fruit on the trees becomes the norm in society and there is no possibility of a dispute, then it will be permitted.
Now coming to your query, if the various types of transactions are considered as permissible due to the norm of society (Ta’amul), then the Hadith Sharif will be discarded i.e. no one will be acting on the Hadith Sharif. The Hadith states:
أَنَّ «النَّبِيَّ – صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ – نَهَى عَنْ بَيْعِ الثِّمَارِ حَتَّى يَبْدُوَ صَلَاحُهَا
Verily Rasulullah Salallahu Alaihi Wasallam prohibited from selling fruit until it ripens
Now the question arises here, that because of Ta’amul (practice of the people) the narration will be completely discarded, which is not permitted. Due to the practice of the people (Ta’aamul), one can make Takhsees (make specifications) in the Hadith, but one cannot totally overlook the Hadith.
Imaam Tahaawi Rahimahullah gives two answers to this narration; the prohibition in the narration was a Mashwera. The words of Zaid Bin Thaabit Radiallahu Anhu in Bukhari Sharif indicates towards this. The meaning of the narration will thus be that, the transaction is permitted but the Mashwera is that it will not be correct to sell in this manner. To accept Mashwera is not Waajib, but Mustahab.
Or, secondly, it could refer to Bay-e-Salam. In Bay-e-Salam, it is necessary for the Ma’bee (goods) to be present from the time of the transaction, until the time of delivery. Hence, the Hadith will mean that it is not permissible to do Bay-e-Salam in fruit before ripening.
(Re: – Fataawa Darul uloom Zakariyya Pg194-197 Vol5)
Now, there are two types of URF; Urf-e-Aam and Urf-e-Khaas. Through Urf-e-Aam a general ruling is established. This Urf can be used to make Takhsees in Qiyaas and Hadith. The ruling of Urf-e-Khaas is different, as a specific ruling is established by it, with the proviso that it does not contradict Qiyaas and Hadith. Urf-e-Khaas cannot be used to make Takhsees in Hadith and Qiyaas. [Re:- Aap Fatwa Kayse De Pg.164]
In conclusion, for the validity of URF the following conditions are required:
- The URF must not contradict a Mansoos ruling.
- It holds such a position in society that it is necessary to act upon it.
- The URF has become widespread and dominant in society.
- The URF was found at the time of this Hukm.
- The transactors must not attach any condition or agreement against the URF. [Re:- Fiqh-e-Islaami Ke Usool Wa Mabaadee Pg.191]
ALLAH TA’ALA KNOWS BEST!
ANSWERED BY:-
Maulana Ahmed Saeed
Date: 09 Dhul Qa’dah 1444 / 30 May 2023
CHECKED AND APPROVED BY:-
Mufti Mohammed Desai